R. v. Leaney, [1989] 2 S.C.R. 393 (1989)

R. v. Leaney, [1989] 2 S.C.R. 393

Frank Earl Leaney Appellant v.

Her Majesty The Queen Respondent and between

Henry Hugh Rawlinson Appellant v.

Her Majesty The Queen Respondent indexed as: r. v. leaney

File Nos.: 20557, 20558.

1989: May 23; 1989: September 14.

Present: Lamer, Wilson, L'Heureux-Dubé, Sopinka and McLachlin JJ.

on appeal from the court of appeal for alberta

Criminal law -- Appeals -- Error of law at trial -- Provision for upholding of conviction if no substantial wrong or miscarriage of justice -- Appellants convicted of charges arising out of a robbery and a break and enter -- Error with respect to admission of evidence as to identity of accused -- Remaining evidence circumstantial -- Convictions upheld on appeal -- Whether or not Court of Appeal erred in upholding convictions -- Criminal Code, R.S.C. 1970, c. C-34, s. 613(1)(b)(iii).

The accused were alleged to have been involved in the robbery of one drugstore and the break-in of another. Both were convicted of armed robbery, of use of a firearm in the commission of that robbery, of break and enter, and, in Rawlinson's case, of possession of stolen property. Leaney appealed all of his convictions and Rawlinson all except the break and enter which he had admitted committing. A majority of the Court of Appeal dismissed the appeals of both on all counts. The issue before this Court was whether the Court of Appeal had correctly applied s. 613(1)(b)(iii) of the Criminal Code when it decided that, notwithstanding a finding of error of law, the verdict would necessarily have been the same absent error of law.

The break and enter was recorded on videotape. At trial, four police officers, who were unacquainted with the accused, and a police sergeant, who had been acquainted with Leaney, identified Leaney as one of the persons shown on the videotape. The second person was not identified but matched the description of Rawlinson. The evidence of the police officers was admitted without a voir dire and that of the police sergeant was fully cross-examined. The trial judge viewed the videotape and concluded independently of the police officers' testimony that Leaney was one of the persons shown on it.

The identification evidence of the break and enter was admitted as similar fact evidence in the robbery charge against Leaney. The only other admissible evidence linking Leaney to the robbery and the firearms offence was circumstantial: boxes found hours after the robbery just outside Rawlinson's apartment w...

If you are already a vLex customer, Access Here